Judgment:
1. A writ petition filed as CWP 4260 of 1999 had been transferred over to this Tribunal, by the High Court, taking into account Notification dated 25.07.2007. The applicant, while working as Junior Engineer in the Delhi Development Authority, had been issued with an order on 08.12.1998, whereby he had been advised that since the applicant has been convicted by a criminal court, he was being removed from service w.e.f. 07.04.1998. The order is issued by the Commissioner, and purported to be in exercise of powers under Regulation 19 of the DDA (Salaries, Allowances and Conditions of Service), Regulations, 1961.
Evidently, the applicant had filed an appeal challenging the orders.
But this also has been rejected, on 03.03.1999 by the Engineer Member DDA. The applicant do admit that he had been convicted on charges under Section 7 and 13(1)(d) of Prevention of Corruption Act, on 07.04.1998, and a show cause notice had been issued but submits that the High Court of Delhi had admitted his appeal, and, therefore, an order placing him under suspension, if at all required, could alone have been passed instead of resorting to extreme steps of removing him from service. The law gave them power, and his family circumstances should have been noticed. Even the appellate authority had not condescended to examine the position. This resulted in the writ petition being filed.
2. A perusal of the writ petition would indicate that the orders had been challenged, suggesting that almost in a similar case (WP 312 of 1994), the High Court had directed that concerned person should be treated as on suspension. According to him, the same treatment ought to have been extended to him. It is also suggested that the order was given retrospective effect, which also was irregular. In addition thereto, it is highlighted that appeal filed by him is yet to be decided by the High Court and there is possibility that decision of the Sessions Judge might be overruled, thus nullifying the whole steps.
3. By MA No. 879 of 2008 filed during April, 2008, the applicant has also raised a contention that in view of the terms of the regulations, an incompetent authority has issued the impugned order. The appeal has also been dealt with by a person who was not competent and, therefore, the order is to be considered as inoperative for all purposes.
4. No additional reply has been filed to the MA, and, it is, therefore, not possible to notice the stand of the respondents vis-is the fresh contentions raised. Mr. Rajeev Sharma, however, highlighted that the said ground had not been raised earlier at the time of show cause nor was it raised at the stage of the appeal. But we have to note that the fact remains that a legal contention could be permitted to be raised questioning the competency when the matter is pending in a writ petition, before it is finally disposed of.
5. The regulations relied on, for substantiating such a contention is made available as Annexure P-2.
6. We do not think that the contention on record in the TA is acceptable, since the Authority is competent to impose a penalty, when there is case of conviction by a criminal court. Such a special procedure is authorized by Regulation 19 of the DDA (Salaries, Allowances and Conditions of Service) Regulations, 1961. (It has undergone an amendment about which we are not concerned). It stipulates that the procedure for imposition of penalty need not be adhered to by the disciplinary authority, where action is taken on the ground that there has been a conduct which had led to a conviction on a criminal charge.
7. However, the competence of the officer gains importance because of the wording of Regulation 15. No officer is to be removed or dismissed or reduced in rank by an authority subordinate to that by which he was appointed, it is generally stated. If Regulation 15 as above is taken into consideration, the order would have been supportable but the regulation also invites our attention to authorities specified in the Schedule. A disciplinary authority is defined under Regulation 2 (4) as an authority competent to impose the penalty. When the Schedule, therefore, specifically refers to the competence of authorities, it need requires an examination as to whether in matters of discipline, the powers could have been exercised only by the personnel who are nominated to attend to such duties. The requirement as above equally applies to the appellate authorities, who are also specified by the rules, who are expected to discharge the functions as designated authorities.
8. Since the question as above is raised at the fag end of the proceedings and effort is made by the applicant to rely on decided cases, we do not think it is to be gone into, one way or the other, as respondents by themselves will be in a position to examine the matter with reference to the rules. This is because Regulation 31 empowers an authority to review orders in disciplinary cases suo moto or otherwise and can come up with orders as deemed fit as if the officer or employee had preferred an appeal. Of course there is a time bar prescribed, but the pendency of the application can be considered as sufficient reason for condoning the delay as above.
9. We dispose of this application with a direction to the first respondent herein, to come up, after hearing the applicant, with an order, taking notice of the legal contention that has been incorporated in the OA, especially about the competence of the authorities to prescribe and impose the punishment. If finding is that the order is passed by a competent officer, then nothing more is expected of them, but if the orders have been passed by persons, who are not expected to usurp the jurisdiction, the Chairman should ensure that the order are duly set aside, and see that the maters are placed before the competent authorities for fresh orders.
10. We by ourselves are not setting aside the impugned order, as the duty is now relegated to the Authority itself. We expect that a dispassionate order, in consonance with regulations, would be passed.
Such proceedings should be finalized in two months time from today.
Application is disposed of as above. MA 879/2008 also stands disposed of. No costs.